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Supreme Court 5 September 2005

Vorhauer v NSW Minister for Health & Anor

[2005] NSWSC 797

Other
PRACTICE PROCEEDINGS BROUGHT BY SUMMONS PRACTICE COMMENCEMENT OF PROCEEDINGS GRANTING OF LEAVE NUNC PRO TUNC FORM OF LEAVE TO GRANT

Citation: Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797
Court: Supreme Court of New South Wales (Equity Division)
Date: 5 September 2005
Judge(s): Campbell J

Background

The plaintiff, a self-represented prisoner, had been convicted after a four-week District Court trial of three serious offences including maliciously wounding police officers with intent to resist apprehension. She was sentenced in December 2003 to four years' imprisonment with a two-year non-parole period, and had a pending appeal in the Court of Criminal Appeal at the time of this application.

In August 2004, the plaintiff was transferred from Mulawa Correctional Centre to Long Bay Prison Hospital. Documentation was executed purporting to invoke section 97 of the Mental Health Act 1990 (NSW), which authorises the Chief Health Officer to order the transfer of a mentally ill prisoner to a hospital. The Mental Health Review Tribunal (MHRT) was notified and subsequently held hearings, including one on its own jurisdiction over the plaintiff.

The plaintiff commenced proceedings in the Supreme Court by summons, raising a wide range of challenges to her transfer, the MHRT's jurisdiction, and related matters. The defendants applied to strike out the summons under the Felons (Civil Proceedings) Act 1981 and, alternatively, to have it stayed or dismissed for want of a reasonable cause of action under Part 13 rule 5 of the Supreme Court Rules 1970.

  • Whether the plaintiff required leave under the Felons (Civil Proceedings) Act 1981 to commence civil proceedings, and whether such leave could be granted retrospectively (nunc pro tunc)
  • Whether the section 97 Mental Health Act 1990 transfer process had been validly invoked, including questions about: the applicable certificate requirements; whether two psychiatrists' certificates sufficed; whether a transfer could be purely notional (no physical movement); and whether the Chief Health Officer could delegate relevant powers
  • Whether the MHRT had been validly vested with jurisdiction to decide matters under section 86(1) of the Mental Health Act 1990
  • Whether the High Court decision in University of Wollongong v Metwally (1984) 158 CLR 447 operated to prevent the MHRT from making valid decisions
  • Whether a claim in assault could be supported by the constitutional implied freedom of political communication, drawing on Theophanous v The Herald and Weekly Times (1994) 182 CLR 104
  • Whether time limits under section 21(4) of the Mental Health Act 1990 applied to section 97 transfers
  • Whether any certificate under section 97 must be based solely on the personal observations of the certifying medical practitioner

Decision

Campbell J considered the defendants' application for summary dismissal alongside the requirement under the Felons (Civil Proceedings) Act 1981 that persons who have committed serious indictable offences obtain leave before commencing civil proceedings. Because the plaintiff had not obtained leave before filing her summons, the question arose whether leave could be granted after the fact. His Honour determined that leave could be granted nunc pro tunc (that is, retrospectively), and that the plaintiff could be permitted to appear or be represented at the leave application itself.

On the summary dismissal application, the court examined each paragraph of the summons. The great majority of the plaintiff's contentions were found to be unarguable, unsustainable, or to have no reasonable prospect of success. These included the argument that Metwally prevented the MHRT from exercising jurisdiction, the contention that a section 97 transfer required physical movement of the prisoner, and the attempt to found an assault claim on the constitutional freedom of political communication identified in Theophanous.

Only one paragraph of the summons survived. Paragraph 2, which raised a challenge to the validity of the MHRT's jurisdiction and related decisions, was not summarily dismissed. Leave to commence and continue that claim was granted nunc pro tunc, but subject to an express condition: the plaintiff was prohibited from raising, in the course of that surviving claim, any contention that the court had already found to be unarguable, unsustainable, or an abuse of process.

The court directed that no further step be taken in the proceedings, without leave of a judge, until the MHRT had been joined as a defendant and a Statement of Claim filed. On costs, the court found that while the defendants had achieved substantial success, the appropriate order was that each party bear their own costs, given the plaintiff's partial success in preserving one claim.

Orders Made

  • The application for an adjournment of the Notice of Motion hearing was declined
  • All paragraphs of the Summons except paragraph 2 were summarily dismissed
  • Leave granted nunc pro tunc to commence and continue the claim in paragraph 2, subject to the plaintiff not raising any contention found in the reasons to be unarguable, unsustainable, an abuse of process, or similarly described
  • Directed that, without leave of a judge, the plaintiff take no step in the proceedings other than joining the MHRT as a defendant and filing and serving a Statement of Claim, until those steps are completed
  • No order for costs of the Notice of Motion or the proceedings to date; each party to bear their own costs

Key Takeaways

  • Under the Felons (Civil Proceedings) Act 1981, a person who has committed a serious indictable offence must obtain leave before commencing civil proceedings in the Supreme Court, and this judgment confirms that such leave may be granted nunc pro tunc where proceedings have already been filed without it.
  • A transfer under section 97 of the Mental Health Act 1990 was found, at least at the summary dismissal stage, to raise arguable questions about the validity of the process, including the form of required certificates and the scope of the Chief Health Officer's delegation powers.
  • The court rejected as unarguable the contention that University of Wollongong v Metwally (1984) 158 CLR 447 operated to deprive the MHRT of jurisdiction to make decisions under the Mental Health Act 1990.
  • An attempt to ground a claim in assault upon the implied constitutional freedom of political communication, as articulated in Theophanous, was found to have no sustainable basis on the facts.
  • Where a summons survives summary dismissal only in part, the court may impose conditions on the continued prosecution of that surviving claim, including expressly prohibiting the re-agitation of contentions already found to be unsustainable.

Legislation and Cases Referenced

Legislation:
- Mental Health Act 1990 (NSW), ss 21(4), 86(1), 97, 100A
- Felons (Civil Proceedings) Act 1981 (NSW)
- Supreme Court Rules 1970 (NSW), Part 13 rule 5
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Anti-Discrimination Act 1977 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Health Legislation Amendment Act 2004 (NSW)
- Racial Discrimination Act 1975 (Cth)
- Judiciary Act 1903 (Cth)
- Justices Act 1902 (NSW)
- Commonwealth Constitution

Cases:
- The University of Wollongong v Metwally (1984) 158 CLR 447
- Theophanous v The Herald and Weekly Times (1994) 182 CLR 104
- Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
- Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
- Viskauskas v Niland (1983) 153 CLR 280
- Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
- Jol v State of New South Wales (1998) 45 NSWLR 283
- Potier v Magistrate Moore & Anor [2004] NSWSC 1131